In re C.G. , 2017 Ohio 896 ( 2017 )

[Cite as In re C.G., 2017-Ohio-896.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF: )
)
C.G., DEPENDENT CHILD )
) CASE NO. 16 JE 0023
)
) OPINION
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas, Juvenile Division, of Jefferson
County, Ohio
Case No. 2014 DN 00013
JUDGMENT: Affirmed
APPEARANCES:
For Appellant Attorney Eric Reszke
Suite 810, Sinclair Building
100 North 4th St.
Steubenville, Ohio 43952
Attorney Sara Gasser
2021 Sunset Blvd.
Steubenville, Ohio 43952
For Appellee Attorney Amanda Abrams
JCJFS – Children Services Department
125 South 5th Street
Steubenville, Ohio 43952
JUDGES:
Hon. Gene Donofrio
Hon. Mary DeGenaro
Hon. Carol Ann Robb
Dated: March 13, 2017
[Cite as In re C.G., 2017-Ohio-896.]
DONOFRIO, J.
{¶1} Appellants, Brian and Candice G., appeal from a Jefferson County
Juvenile Court judgment terminating their parental rights and granting permanent
custody of their daughter to appellee, the Jefferson County Department of Job and
Family Services.
{¶2} C.G. was born to appellant Candice G. (mother) and appellant Brian G.
(father) on April 14, 2014. Appellee, the Jefferson County Department of Job and
Family Services (the agency), was granted emergency temporary custody of C.G.
when she was discharged from the hospital. C.G. was placed in a foster home.
{¶3} The trial court granted the agency emergency temporary custody based
on the parents’ history with their other children. The parents had recently moved to
Ohio from West Virginia. According to the West Virginia Department of Protective
Services (WVDPS), the parents had a history of abuse and neglect regarding C.G.’s
five siblings. Mother had recently permanently relinquished her parental rights to her
three other children. Father had recently permanently relinquished his parental rights
to his three other children. The parents share one other child in addition to C.G. So
together, the parents relinquished their rights to five children. Currently, two of the
children are in the custody of WVDPS while the other three children are in the
custody of their mother or father (who are different than the parents in this case).
{¶4} The parents’ history with WVDPS dates back to 2008. According to
WVDPS, there have been incidents of physical abuse by father, sexual abuse by
father, and neglect allegations against mother for failing to adequately protect the
children from abuse and for failing to report abuse of which she was aware.
{¶5} The trial court appointed a guardian ad litem for C.G. The court
adjudicated C.G. a dependent child and granted the agency temporary custody. The
agency put a case plan in place that included parenting classes, counseling, and
supervised visitation for both parents. It also included sex offender specific
treatment for father.
{¶6} On January 5, 2016, the parents filed motions to terminate the agency’s
temporary custody. A magistrate held a hearing on the motions.
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{¶7} The magistrate elaborated on the allegations against the parents in
West Virginia. He noted that WVDPS substantiated incidents where (1) father hit
mother’s child in the face causing a split lip and mark on her eye and mother failed to
report this, (2) father duct-taped his child’s head, and (3) father sexually abused
mother’s child and mother failed to report this. The magistrate then noted that C.G.
had been in the agency’s custody for almost two years and the parents had done
everything the agency asked of them in their case plan including working with a
parent aide, visiting C.G. on a regular basis, father undergoing sex abuse counseling,
and mother completing counseling and continuing to attend voluntarily. The
magistrate found that despite the parents’ efforts, the agency had not structured a
reunification plan. He noted that the parents visit with C.G. twice a week for two
hours a visit. The magistrate pointed out this schedule had been the same for one
and a half years.
{¶8} The magistrate also acknowledged testimony by an agency supervisor
that the agency still had concerns regarding C.G.’s safety given that father never
admitted to sexually abusing mother’s child in West Virginia and mother failed to
report the abuse. The magistrate noted that the agency was willing to increase
visitation adding an additional day or additional hours. The agency stated that it had
not done so sooner because it was short-staffed. Additionally, the magistrate noted
that father’s counselor classified father as a low to moderate risk of reoffending and
recommended continued counseling.
{¶9} Based on the above, the magistrate recommended the trial court deny
the motions to terminate temporary custody. He also recommended that the agency
increase parenting time and “establish a meaningful path toward reunification while
maintaining the child’s safety.” The trial court adopted the magistrate’s decision on
February 29, 2016.
{¶10} The next day, March 1, 2016, the agency filed a motion for permanent
custody. In its motion, the agency stated that it did not receive the paperwork from
WVDPS to substantiate the alleged sexual abuse until October 6, 2015. The agency
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had “grave concerns” with father’s continued denial of the sexual abuse. It noted that
there was one substantiated report of sexual abuse against father and three similar
unsubstantiated reports. The agency further stated that it recently increased
visitation to three-hour visits and now allows mother to have unsupervised visits with
C.G. at the agency. In fact, the agency stated that mother is permitted as much
unsupervised contact with C.G. at the agency that the foster parents can
accommodate.
{¶11} On July, 25, 2016, the magistrate held a hearing on the agency’s
motion for permanent custody. The magistrate heard testimony from the
caseworkers, the guardian ad litem, the parents, and the paternal grandmother. The
magistrate found the parents had completed their case plans. Nonetheless, the
magistrate found that C.G. could not be safely placed with the parents within a
reasonable period of time. He also found that C.G. has been in the agency’s custody
for two years and has resided with the same foster family the entire time. The
magistrate then found that the serious nature or likelihood of abuse or neglect makes
the placement of C.G. with her parents a threat to her safety. The magistrate found
that it was in C.G.’s best interest to grant her permanent custody to the agency.
{¶12} Both parents filed objections to the magistrate’s decision. They
asserted the magistrate’s decision was not in C.G.’s best interest. They also argued
that they completed all aspects of their case plans. And they argued that the agency
failed to make reasonable efforts to reunify them with C.G. and, in fact, never
intended reunification. Father also argued the agency failed to place C.G. with a
suitable family member.
{¶13} The trial court overruled the parents’ objections. The court adopted the
magistrate’s decision and entered judgment granting the agency’s motion for
permanent custody.
{¶14} Mother and father each filed a timely notice of appeal on October 6,
2016. Mother raises two assignments of error. Father raises one assignment of
error. Father’s assignment of error coincides with mother’s second assignment.
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Therefore, we will address them together.
{¶15} Mother’s first assignment of error states:
THE JEFFERSON COUNTY JOB AND FAMILY SERVICES,
CHILDREN SERVICES AGENCY DID NOT MAKE A REASONABLE
EFFORT TO REUNIFY WITH THE NATURAL MOTHER OF THE
MINOR CHILD.
{¶16} In this assignment of error, mother asserts the agency failed to make
reasonable efforts to reunify her with C.G. Mother claims that she successfully
complied with her case plan and there was nothing more the agency requested of
her. She argues that although the agency created a case plan, their goal had always
been to gain permanent custody of C.G. She points out that she attended counseling
sessions, visitations, and parenting classes. Mother also points out that her visitation
was increased from one-hour visits to two-hour visits. But when she asked for
another increase in visitation, the agency refused due to staffing problems. She
asserts the agency should have continued to increase her visitation until she could
be reunified with C.G.
{¶17} Although father does not raise reunification efforts as a separate
assignment of error, he still makes an argument similar to mother’s argument here.
Father asserts the agency thwarted his efforts to reunify with C.G. He points out the
agency denied requests for additional visitation, failed to reschedule canceled visits,
would not allow him to hold C.G., and denied his request to go to doctors’ visits with
C.G.
{¶18} If a child has been in the temporary custody of a public children
services agency for 12 or more months of a consecutive 22-month period, the agency
shall file a motion requesting permanent custody of the child. R.C. 2151.413(D)(1).
{¶19} The agency must make reasonable efforts to reunify the family before
terminating parental rights. In re C.F., 113 Ohio St. 3d 73, 2007-Ohio-1104, 862
N.E.2d 816, ¶ 4. If it has not already proven reasonable efforts, the agency must do
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so at the permanent custody hearing. Id.
{¶20} Courts have described “reasonable efforts” as the agency’s efforts to
resolve a threat to a child's health or safety before removing the child from his or her
home or permitting the child to return home again, following an intervention to protect
the child from abuse or neglect. In re H.H., 9th Dist. No. 25463, 2010-Ohio-5992,
¶ 10.
{¶21} In this case, the evidence demonstrates that the agency made
reasonable efforts to return C.G. to her parents’ care.
{¶22} Nicole Cook, the agency caseworker assigned to this case, testified
regarding the case plan for the family. She stated that the agency formulated a case
plan for the parents that included working with a parent aide, attending visitation, and
attending individual and couples’ counseling. (Tr. 153). Cook stated that father was
also to attend a sexual offender treatment assessment and follow all
recommendations that followed the assessment. (Tr. 153). She stated that the
agency provided father with the names of a few different sex offender treatment
professionals and father then selected Dr. Kissinger. (Tr. 156).
{¶23} Cook also testified that the agency received some information from
WVDPS at the beginning of this case but WVDPS did not send the agency its
complete file. (Tr. 153). She stated WVDPS had told the agency by phone that there
was a substantiated claim of sexual abuse by father but WVDPS did not provide
them with the paperwork to support this statement. (Tr. 153). Consequently, Cook
made multiple calls to the WVDPS supervisor. (Tr. 153). Cook also had Dr.
Kissinger make several phone calls to WVDPS in an attempt to obtain the entire file.
(Tr. 153). She finally received the file in October 2015. (Tr. 154). Cook immediately
scheduled a family team meeting to go over the file. (Tr. 154). Cook stated the
agency then filed for an extension of temporary custody in order to give Dr. Kissinger
time to address the issues substantiated by the file. (Tr. 154-155).
{¶24} Cook stated that throughout this case she remained in contact with Dr.
Kissinger regarding father’s progress and received approximately six reports from
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him. (Tr. 156-158). As to the parents’ progress on the case plan, Cook testified that
they completed individual and couples’ counseling. (Tr. 160). She stated the agency
received letters from both of their counselors stating they had completed their
counseling. (Tr. 160).
{¶25} Linda Battle, the parents’ case aide, also testified regarding the
agency’s efforts in this case. Battle provided parenting classes to the parents and
also supervised their visitations. (Tr. 213). As to the parenting classes, Battle stated
the classes began when C.G. was an infant and occurred right after visitations. (Tr.
213-214). The weekly classes continued for eight to nine months. (Tr. 214-215).
Battle testified that the parents were receptive to what she taught them. (Tr. 215).
As to the visitation, Battle stated that the supervised visits started out at two, two-
hour visits per week. (Tr. 215). She stated the agency later increased the
supervised visits to two, three-hour visits per week. (Tr. 216). She also stated that
recently mother was given two more hours per week of unsupervised visitation
without father. (Tr. 216).
{¶26} Given Cook’s and Battle’s testimony and the history of this case, the
agency demonstrated reasonable efforts to return C.G. to her parents’ care.
{¶27} Accordingly, Mother’s first assignment of error is without merit and is
overruled.
{¶28} Mother’s second assignment of error states:
THE MAGISTRATE’S DECISION AND THE JUVENILE
COURT’S AFFIRMATION OF SAID DECISION, WHICH TERMINATED
THE PARENTAL RIGHTS OF THE APPELLANT, WAS AN ABUSE OF
DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶29} Father’s sole assignment of error states:
THE JUVENILE COURT COMMITTED REVERSIBLE ERROR
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IN GRANTING THE AGENCY’S MOTION FOR PERMANENT
CUSTODY.
{¶30} In this assignment of error, mother takes issue with two of the trial
court’s conclusions.
{¶31} First, she takes issue with the trial court’s conclusion that C.G. was
doing well in foster care. Mother asserts there was undisputed testimony that, during
the winter, the foster parents brought C.G. to visitation without a coat, hat, shoes, or
socks. She also states there was testimony that C.G. was often dirty with matted
hair. And mother points to testimony that at visits, she would clean C.G.’s face, comb
her hair, and bring her appropriate clothing.
{¶32} Second, mother takes issue with the trial court’s finding that it was in
C.G.’s best interest to terminate parental rights and grant permanent custody to the
agency. She argues the agency did not prove by clear and convincing evidence that
any of the factors in R.C. 2151.414(E) necessary for permanent custody applied
here. Again mother argues that the agency did not use reasonable efforts to reunify
her with C.G. and that she complied with her case plan. She also asserts there is no
evidence of alcohol or drug use and no housing concerns. Mother asserts the
evidence was that she has completed her case plan and can provide a safe home for
C.G.
{¶33} In his assignment of error, father also argues that he completed his
case plan. He asserts the evidence was that he successfully completed parenting
classes, counseling, an assessment and sex offender specific treatment, and
visitation. Father also points to evidence that he consistently visits C.G., buys her
clothing, and is concerned with her well-being. Father additionally notes that he has
denied the abuse allegations against him.
{¶34} A parent's right to raise his or her children is an essential and basic civil
right. In re Murray, 52 Ohio St. 3d 155, 157, 556 N.E.2d 1169 (1990), citing Stanley v.
Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). “Permanent
termination of parental rights has been described as ‘the family law equivalent of the
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death penalty in a criminal case.’ In re Smith (1991), 77 Ohio App. 3d 1, 16, 601
N.E.2d 45, 54.” In re Hayes, 79 Ohio St. 3d 46, 48, 679 N.E.2d 680 (1997).
However, this right is not absolute. In re Sims, 7th Dist. No. 02-JE-2, 2002-Ohio-
3458, ¶ 23. In order to protect a child's welfare, the state may terminate parents'
rights as a last resort. Id.
{¶35} We review a trial court's decision terminating parental rights and
responsibilities for an abuse of discretion. Sims, 7th Dist. No. 02-JE-2, ¶ 36. Abuse
of discretion connotes more than an error of law or judgment; it implies that the
court's attitude was arbitrary, unreasonable, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
{¶36} Pursuant to R.C. 2151.414(B)(1):
[T]he court may grant permanent custody of a child to a movant
if the court determines at the hearing held pursuant to division (A) of
this section, by clear and convincing evidence, that it is in the best
interest of the child to grant permanent custody of the child to the
agency that filed the motion for permanent custody and that any of the
following apply:
***
(d) The child has been in the temporary custody of one or more
public children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month period, * * *.
{¶37} Clear and convincing evidence is evidence that produces in the mind of
the trier of fact a firm belief or conviction as to the facts sought to be established. In
re Adoption of Holcomb, 18 Ohio St. 3d 361, 368, 481 N.E.2d 613 (1985).
{¶38} In this case, the trial court found, and it is undisputed that, C.G. has
been in the agency’s temporary custody for 12 or more months of a consecutive 22-
month period. C.G. has been in the agency’s continuous custody since she was
discharged from the hospital at birth in April 2014. Therefore, R.C. 2151.414(B)(1)(d)
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applies here. Thus, we must determine whether clear and convincing evidence
supports the trial court’s determination that it was in C.G.’s best interest to grant her
permanent custody to the agency.
{¶39} In determining whether it is in the child's best interest to grant custody
to the agency, the court shall consider:
(a) The interaction and interrelationship of the child with the
child's parents, siblings, relatives, foster caregivers and out-of-home
providers, and any other person who may significantly affect the child;
(b) The wishes of the child, * * * with due regard for the maturity
of the child;
(c) The custodial history of the child, including whether the child
has been in the temporary custody of one or more public children
services agencies or private child placing agencies for twelve or more
months of a consecutive twenty-two-month period, * * *;
(d) The child's need for a legally secure permanent placement
and whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child [regarding certain
crimes, withholding food or medical treatment, drug and alcohol abuse,
abandonment, and having previously had parental rights terminated].
R.C. 2151.414(D)(1).
{¶40} The trial court made several pages of detailed findings, including the
following findings regarding the statutory best interest factors.
{¶41} As to the first statutory factor (the child’s interaction with parents, foster
parents’, siblings, etc.), the court found C.G. has bonded with her foster family and is
doing very well there. It noted that she has been successfully integrated into her
foster home and her foster parents are interested in adopting her.
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{¶42} As to the second statutory factor (the child’s wishes), the court found
that C.G. was too immature based on her age (two years old) to express her wishes.
{¶43} As to the third statutory factor (the custodial history), the court found
that the agency received custody of C.G. when she was discharged from the hospital
after her birth. C.G. was immediately placed in foster care. She has remained in the
same foster home throughout the duration of this case. C.G. has been in the
agency’s custody for 12 or more months of a consecutive 22-month period.
{¶44} As to the fourth statutory factor (the child’s need for a legally secure
permanent placement), the court found C.G. cannot be safely placed with the parents
within a reasonable period of time. It further found C.G. is in need of a legally secure
permanent placement and such a placement cannot be accomplished without the
granting of permanent custody to the agency.
{¶45} The fifth statutory factor (dealing with certain convictions and other
issues) does not apply in this case.
{¶46} In addition to the statutory factors, the court made many other findings
as follows.
{¶47} The GAL recommended the court grant the permanent custody motion.
C.G. is healthy and has no medical issues.
{¶48} Shortly before C.G.’s birth, the parents relinquished their respective
rights to four children in West Virginia. Father had previously relinquished his rights
to another child. After relinquishing their rights, the parents moved to Ohio, in part to
attempt to maintain custody of C.G.
{¶49} Father has substantiated sexual abuse claims against him in West
Virginia. Father also has unsubstantiated sexual abuse allegations against him in
West Virginia. And father has substantiated physical abuse claims against him in
West Virginia. Mother has substantiated failure to protect claims against her in West
Virginia. The parents remained silent in the court proceedings in West Virginia where
they were found to be abusive and neglectful parents. In West Virginia, a person’s
silence when confronted with probative evidence against them is considered
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affirmative evidence of the person’s culpability.
{¶50} The agency established a case plan with the initial goal of reunification.
The parents completed the case plan as far as education and aide services,
individual counseling, couples’ counseling, and visitation. Father also completed a
sex offender assessment and sex offender treatment which was then added as part
of the case plan. Father underwent sex offender treatment with Dr. Kissinger. Dr.
Kissinger classified father as a low to moderate risk to reoffend due to father’s denial
of sexually abusing any of the children in West Virginia.
{¶51} Mother completed her case plan. But there is still a concern
surrounding mother’s ability to protect C.G. due to her failure to report in West
Virginia. Mother knew father struck one of the other children in the face but failed to
report it. Mother does not believe the sexual abuse allegations against father.
Father continues to deny committing any sexual abuse. Father initially admitted to
duct-taping of the children’s heads, but now denied this incident.
{¶52} The evidence supports the trial court’s findings.
{¶53} In addition to the testimony set out above in addressing mother’s first
assignment of error, the parties presented the following evidence.
{¶54} Dr. Kissinger first met with father in June 2014. (Tr. 10). He conducted
several tests and at that time concluded that father was at low risk to sexually
reoffend. (Tr. 12). At that time, Dr. Kissinger did not have knowledge of any
substantiated claims against father. (Tr. 13). Father admitted to hitting a child in the
car but claimed it was in an attempt to keep the child in the car seat. (Tr. 14). Dr.
Kissinger counseled father to work on parenting issues and stress. (Tr. 13).
{¶55} In April 2015, Dr. Kissinger was provided information regarding
allegations that father had punched his adopted son in the groin and touched his
genitals. (Tr. 15). Consequently, Dr. Kissinger recommended father attend sexual
offender specific treatment. (Tr. 16). Father complied with this recommendation.
(Tr. 16). Dr. Kissinger also recommended father should have increased time with
C.G. (Tr. 39).
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{¶56} In October 2015, Dr. Kissinger received written documentation that the
physical and sexual abuse regarding father’s adopted son was substantiated. (Tr.
18). Dr. Kissinger addressed this matter with father. (Tr. 19). Father denied the
abuse. (Tr. 19). Based on the information that the allegations were substantiated,
Dr. Kissinger recommended that father continue with sex offender treatment. (Tr.
19).
{¶57} In January 2016, Dr. Kissinger re-evaluated father. (Tr. 20). He
determined father was now at a low to moderate risk to sexually reoffend. (Tr. 20).
In other words, Dr. Kissinger stated father had a 30 to 40 percent likelihood of
reoffending. (Tr. 37). Dr. Kissinger stated that father’s risk level was elevated
because he continued to deny the sexual abuse. (Tr. 20). In other words, Dr.
Kissinger believed there was a possibility that father would reoffend. (Tr. 20-21).
Nonetheless, Dr. Kissinger opined that if father was left alone with C.G., she would
be safe. (Tr. 40). He recommended father have continued therapy sessions and
have continued contact with C.G. (Tr. 23).
{¶58} Finally in July 2016, Dr. Kissinger opined at the hearing that if father
was going to reunify with C.G., he should continue with sex offender treatment. (Tr.
25). But Dr. Kissinger also opined that father had reached the maximum benefit from
his treatment because he continued to deny he committed any sexual abuse. (Tr.
25).
{¶59} Anna Grafton was the family’s caseworker in West Virginia. Grafton
was assigned to the case in May 2013. (Tr. 61). She explained the case history and
that the family’s case was open and shut several times in West Virginia.
{¶60} Grafton testified that one of father’s biological children, who was two
years old at the time, had genital warts and she had reported that father had licked
her private area. (Tr. 62). The allegation was unsubstantiated, however, because
the child could not give many details. (Tr. 63). Father, however, later tested positive
for genital warts as well. (Tr. 90). Several other individuals who were in frequent
contact with the child tested negative. (Tr. 91).
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{¶61} Grafton next testified that in 2008 or 2009, one of mother’s children,
who was three or four years old at the time, reported to her biological father that
father had licked her private area. (Tr. 63-65, 68). That allegation was
unsubstantiated. A few years later, the same child reported that father hit her in the
face while they were in the car. (Tr. 65). The child suffered a split lip and abrasions
to her face. (Tr. 65). The child reported the incident to mother, but mother failed to
report it. (Tr. 65). WVDPS substantiated that father physically abused the child and
that mother failed to do anything about it. (Tr. 66). The children were placed with
their paternal grandmother at that time. (Tr. 68). But they were removed after
another allegation arose. (Tr. 69).
{¶62} As a result of striking the child in the car, father was charged with
battery. (Tr. 73). The charge was dismissed, however, after father completed a
domestic violence program. (Tr. 73).
{¶63} Grafton testified that mother and father’s biological child disclosed to
her grandmother that father had touched her private area. (Tr. 69). WVDPS
substantiated this allegation. (Tr. 69).
{¶64} Next, Grafton testified regarding an allegation by father’s adopted son
that father had “duct-taped” him. (Tr. 72). Grafton stated that father admitted to this
allegation. (Tr. 72). Thus, WVDPS substantiated this claim of physical abuse. (Tr.
72).
{¶65} Finally, Grafton testified as to an allegation by father’s adopted son that
father had on occasion grabbed his private area. (Tr. 79-81). The son disclosed this
information to his grandmother who reported it to WVDPS. (Tr. 79-81). WVDPS
substantiated the claim after the child spoke with someone at the sexual assault help
center. (Tr. 81).
{¶66} As to the claims that were substantiated, Grafton testified that in order
to be substantiated, the burden of proof in West Virginia was preponderance of the
evidence. (Tr. 123). She also stated that the parents’ silence in court on these
allegations was construed as an admission on their part. (Tr. 132).
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{¶67} Grafton also testified that WVDPS implemented an improvement plan
for the family and provided them with numerous services such as a domestic violence
program, parenting services, and life skills services. (Tr. 72-77). Grafton testified,
however, that the parents were unable to make the satisfactory changes with regard
to the improvement plan. (Tr. 79). WVDPS had a continuing concern that mother
refused to believe that father was abusing the children and that she would fail to
report abuse in the future. (Tr. 74-75)
{¶68} As a result of all of the above, Grafton testified that the parents
voluntarily surrendered their rights to all of their children. (Tr. 91). At the time,
mother was pregnant with C.G. (Tr. 92).
{¶69} Michelle Kuczynski is the agency intake worker who handled this case.
She testified that based on the parents’ case in West Virginia, the agency moved the
trial court for an emergency custody order of C.G., which the court granted. (Tr.
138).
{¶70} Caseworker Nicole Cook testified as to the parents’ case plan as
discussed above. Cook testified that the parents completed all aspects of the case
plan except for one. (Tr. 158). The one aspect they did not complete was that the
agency still has “very much concern” regarding the sexual abuse. (Tr. 158). Cook
was concerned that father continued to deny committing any sexual abuse. (Tr. 158).
She stated that father could not work through the sex offender treatment program
when he did not admit to committing any sexual abuse. (Tr. 158-159). She also
noted that the child who tested positive for genital warts was two years old at the
time. (Tr. 170). She stated that C.G. was now two, and that concerned her. (Tr.
170).
{¶71} Cook next testified that in February 2016, mother contacted her and
stated she had filed for divorce from father so that she could get custody of C.G. (Tr.
170-171). But mother withdrew her complaint for divorce shortly thereafter. (Tr.
175). Cook testified that the agency’s main concern with mother is that she is
married to father. (Tr. 195).
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{¶72} Next, Cook testified that C.G. has been with the same foster parents
since her birth. (Tr. 180-181). She stated C.G. is thriving and has no developmental
delays. (Tr. 181). Cook stated C.G. is attached to her foster parents and they have
expressed a desire to adopt her. (Tr. 181).
{¶73} Case aide Linda Battle testified regarding the parents’ visitation and
parenting classes as discussed above. Battle testified that the duration of the
supervised visits increased over time. (Tr. 215-217). In fact, mother is now permitted
unsupervised visitation at the agency as long as she can arrange it with the foster
parents and as long as father does not attend. (Tr. 217). Battle testified that at one
point the parents asked to attend C.G.’s doctor visits, but the agency did not allow
them. (Tr. 226-227).
{¶74} As to the foster parents, Battle stated that mother expressed some
concern when they brought C.G. to visits wrapped in a blanket instead wearing of a
coat and socks. (Tr. 229). She also stated the parents had concerns when the foster
parents brought C.G. to visits being “a little dirty.” (Tr. 230). Battle stated this was
addressed with the foster parents. (Tr. 230). She stated that the foster parents also
cancelled visits occasionally due to doctor’s appointments or car troubles. (Tr. 232-
233). Sometimes the visits were made up and other times they were not. (Tr. 233).
{¶75} Battle stated the parents have always attended their visits and been
cooperative with the rules. (Tr. 222). She testified that at visits, mother combs
C.G.’s hair and brings her new clothing. (Tr. 232).
{¶76} Margaret is C.G.’s paternal grandmother. She testified that she
petitioned the court for custody of C.G. but the court denied her petition. (Tr. 245-
246).
{¶77} Father testified that he was honest and forthcoming with Dr. Kissinger.
(Tr. 281). He believed that he completed Dr. Kissinger’s program. (Tr. 281). Father
further denied all of the allegations against him except for one. (Tr. 282-288, 296).
Father admitted to striking the child in the car. (Tr. 285). He stated he was trying to
push her back in her seat and “caught her in the face.” (Tr. 285). Father stated he
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was charged with domestic battery but the charge was dropped after he completed
anger management classes. (Tr. 285-286).
{¶78} Father testified he gave up his rights to his children “just to stop
everything.” (Tr. 288). He stated he was tired of the allegations and of putting his
children through this situation. (Tr. 288). He also stated that his lawyer in West
Virginia advised him and mother to voluntarily surrender their rights and then to move
out of West Virginia to have C.G. in hopes to keep her. (Tr. 304).
{¶79} Mother testified that she knew father hit the child in the car and she did
not report it. (Tr. 310). She denied that any of the other children reported any abuse
to her by father. (Tr. 313). Mother testified the agency gave her a case plan and she
completed it. (Tr. 314-315).
{¶80} She also testified as to her concerns with the foster parents. Mother
stated that sometimes in the winter C.G. would not have on a hat, coat, socks, or
shoes. (Tr. 321). She has come to some visits dirty and her hair has not been
washed. (Tr. 321). Mother stated that when C.G. comes to visits, she cleans her up,
does her hair, and changes her clothes. (Tr. 321).
{¶81} And mother stated that she filed for divorce in an attempt to keep C.G.
(Tr. 324). But she later dismissed the divorce action because she believed she
would fail. (Tr. 325).
{¶82} Finally, mother testified that her lawyer advised her not to testify in the
West Virginia court proceedings. (Tr. 326). But her lawyer did not advise her that by
not testifying, she was admitting the allegations against her. (Tr. 326).
{¶83} This is a difficult case because the parents complied with most of their
case plan. They successfully completed parenting classes, they completed individual
and couples’ counseling, and they regularly attended visits with C.G. There were no
complaints from the agency workers regarding any of these areas of the case plan.
{¶84} But the problem remains that father has not, to the agency’s
satisfaction, addressed the sexual abuse allegations against him. In fact, father has
steadfastly denied these allegations. Likewise, mother has failed to acknowledge
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that father has done anything wrong. Dr. Kissinger testified that father regularly
attended sex abuse offender treatment. But the doctor opined that until father can
admit what he did, father has reached the maximum benefit from treatment. Dr.
Kissinger opined that father had a 30 to 40 percent chance of reoffending. Multiple
allegations were made against father by multiple children, both his and mother’s
children, of sexual and physical abuse. WVDPS was able to substantiate two
allegations of physical abuse and one allegation of sexual abuse. Moreover, even
though WVPDS was unable to substantiate the claim of abuse, father’s two-year-old
was diagnosed with genital warts and father too was diagnosed with genital warts.
{¶85} Given the severe nature of the allegations, the fact that several of the
allegations were substantiated, and the fact that both father and mother continue to
deny the allegations, despite the parents’ compliance with the rest of the case plan,
the trial court did not abuse its discretion in granting permanent custody to the
agency.
{¶86} Several courts have commented on similar situations where the parents
substantially complied with the case plan, yet the court still granted the motion for
permanent custody.
{¶87} For instance the Third District noted, “[s]ubstantial compliance with a
case plan, without more, does not entitle a parent to custody.” In re Gomer, 3d Dist.
Nos. 16-03-19, 16-03-20, 16-03-21, 2004-Ohio-1723, ¶ 36. Courts instead are to
consider whether the parent has substantially remedied the conditions that caused
the child's removal. Id.
{¶88} The Eighth District similarly held, “a parent can successfully complete
the terms of a case plan yet not substantially remedy the conditions that caused the
children to be removed — the case plan is simply a means to a goal, but not the goal
itself.” In re C.C., 187 Ohio App. 3d 365, 2010-Ohio-780, 932 N.E.2d 360, ¶ 25 (8th
Dist.). Substantial compliance with a case plan does not preclude a grant of
permanent custody to a social services agency. Id.
{¶89} And the Fourth District has stated:
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“* * * [A] child should not have to endure the inevitable to its great
detriment and harm in order to give the * * * [parent] an opportunity to
prove her suitability. To anticipate the future, however, is at most, a
difficult basis for a judicial determination. The child's present condition
and environment is the subject for decision not the expected or
anticipated behavior of unsuitability or unfitness of the * * * [parent]. * * *
The law does not require the court to experiment with the child's welfare
to see if he will suffer great detriment or harm.” In re Bishop, 36 Ohio
App.3d 123, 126, 521 N.E.2d 838 (5th Dist.1987), quoting In re East, 32
Ohio Misc. 65, 69, 288 N.E.2d 343, 346 (1972).
Thus, the trial court had no obligation to experiment with this
young child's welfare in order to permit appellant to prove that he would
be able to properly care for the child, protect the child from potential
harm that could result from the mother's mental illness, and provide a
safe, stable, and permanent home, especially when the child had been
in the same foster home since birth and when appellant had over one
year to prove his suitability. The trial court quite reasonably could have
determined that uprooting the child from the only home he has ever
known and placing him in appellant's uncertain care would not be in the
child's best interest.
In re W.C.J., 4th Dist. No. 14CA3, 2014-Ohio-5841, ¶ 48.
{¶90} Such is the case here. C.G. has lived with her foster parents since her
birth. They are the only family she has ever known. There may have been some
minor issues with the foster parents not combing C.G.’s hair or bringing her to visits
with a blanket instead of a coat and hat. But other than those minor issues, the
testimony was that C.G. is attached to her foster parents and doing very well. And
the foster parents wish to adopt her. The trial court should not be required to gamble
with C.G.’s well-being by placing her in mother and father’s uncertain care. Again,
the focus in this case is C.G.’s best interest, not the parents’ compliance with their
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case plan.
{¶91} The evidence was clear that C.G. has been in the agency’s care for at
least 12 of the past 22 months. The evidence also established that mother and
father have not been able to substantially remedy the condition that caused the
agency to remove C.G. from their care. And the evidence demonstrated that
permanent custody was in C.G.’s best interest. For these reasons, the trial court did
not abuse its discretion in granting the agency’s motion for permanent custody.
{¶92} Father also raises an argument that the court should have granted
C.G.’s custody to his mother who filed a petition for legal custody of C.G.
{¶93} The paternal grandmother filed a petition for allocation of parental rights
and responsibilities with the trial court in a separate case. The magistrate
recommended denying the grandmother’s petition. No objections were filed to the
magistrate’s decision. The trial court adopted the magistrate’s decision and denied
the grandmother’s petition for allocation of parental rights and responsibilities. No
appeal was filed from the trial court’s judgment. Thus, the time to make an argument
regarding placement with the grandmother has passed.
{¶94} Accordingly, mother’s second assignment of error is without merit and
is overruled. Likewise, father’s sole assignment of error is without merit and is
overruled.
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{¶95} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
DeGenaro, J., concurs.
Robb, P.J., concurs.